If the weather permits a hearing in Astoria today, the Clatsop County Planning Commission may ignore the advice of county staff and approve a couple's Measure 37 bid to build a 28-lot subdivision.
The commission didn't hold its first hearing on the subdivision until Nov. 13, a week after voters approved Measure 49, which scaled back 7,500 property development claims filed under the earlier measure. Measure 49 will limit many of those claimants to building one to three homes, or 10 at most.
Although it was clear the law was about to change, the planning commission has held that property owners James and Virginia Carlson began their project fairly under Measure 37 and ought to be allowed to continue, because Measure 49 doesn't kick in until Thursday.
The case illustrates the confusion over putting Measure 49 into effect. Oregon's counties are all over the map on key parts of it, and landowners, land-use lawyers and partisans are on a collision path with the court system to sort it out.
The counties are particularly looking for guidance on whether developments begun under Measure 37 can continue under Measure 49. The measure permits such work if it is "vested" under common law, meaning that the property owner has spent sufficient money on the project, proceeded in good faith and met other standards.
If so, the property owner could be allowed to continue building even if the development is beyond the scope of what's allowed under Measure 49. Around the state, the fate of several rural subdivisions ranging up to 40 or more homes rests on how vesting is decided.
Lawyers are split on the issue. Some maintain that any work begun under Measure 37 is vested, even if the property owner simply applied for a construction permit. Others think that any Measure 37 work done after June 15, when the Oregon Legislature referred Measure 49 to voters, was done in "bad faith" because it was apparent the law might change.
Dave Hunnicutt, a lawyer who is president of the property rights group Oregonians in Action, predicted litigation for the next 18 months as lawsuits carry Measure 49 questions into the state appellate courts.
"The only attorneys whose opinion matters are the 10 on the Court of Appeals and the seven on the Supreme Court -- and they haven't said anything yet," Hunnicutt said.
Richard Whitman, the new director of the state Department of Land Conservation and Development, has issued draft rules for defining and handling vested rights cases. Whitman, who helped write Measure 49, said counties and cities lack the authority to adopt ordinances "purporting to establish some other test for when a use is vested."
But some counties are pushing ahead. The Clatsop County Planning Commission was advised to deny the Carlsons' subdivision plan, which is on 75 acres that were unzoned when James Carlson inherited it from his parents in 1957.
Timing is the issue to county planner Michael Weston, however. "Staff would like to note that processing this application under the guise of Measure 37, while knowing that Measure 49 has passed, could be construed as a 'bad faith' effort on the part of the county, the planning commission and (the property owners)," Weston warned in a Nov. 27 staff report.
The planning commission's action "won't clear the smell test in terms of vested rights," said Eric Stachon, spokesman for the conservation group 1000 Friends of Oregon. "The fact that the planning commission has chosen to hold a special hearing to slip it in under the rug is a slap in the face of voters."
But the Carlsons' attorney, Jim Zupancic of Portland, said his clients had no control over when the commission scheduled the hearing dates. "The application was made for a land-use permit long before Measure 49 was voted on. It was in process during the time Measure 49 was being debated."
In Clackamas County today, commissioners were to consider whether to issue a blanket stop-work order on Measure 37 developments.
And Marion County is rushing to adopt a vesting ordinance that could have a whiplash effect on developers such LeRoy Laack, who is trying to build a 43-lot subdivision under a Measure 37 claim. The county issued Laack a major construction permit last week but is likely to hit him with a stop-work order Thursday. He would then be directed through the vesting process.
Clackamas County Commissioner Lynn Peterson said counties are looking for the state to coordinate the implementation of Measure 49.
"It's going to be decided case by case," Peterson said, "so we were asking them to take the cases and make a decision on whether someone is vested or no -- so it will be interpreted by one body, rather than by 36 bodies."
Eric Mortenson; 503-294-7636; ericmortenson@news.oregonian.com
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